Jaensch v Coffey

155 CLR 549
54 ALR 417

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(Judgment by: GIBBS CJ)

Jaensch
v Coffey

Court:

Judges: GIBBS CJ
MURPHY J
BRENNAN J
DEANE J
DAWSON J

Subject References:
Negligence

Judgment date: 20 August 1984

Adelaide

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Judgment by:
GIBBS CJ

I have had the advantage of reading the judgment prepared by my brother Deane. I agree with his conclusion and, in general, with his reasons. I can therefore express my own views quite shortly.

The respondent developed a psychiatric illness, characterised by anxiety and depression, because of what she saw and heard at the hospital to which her husband was admitted with serious injuries caused by the negligent driving of the appellant. Before the law had reached its present stage of development, the respondent would have had no right to recover damages from the appellant. She was not herself physically injured in the collision, and was not within the area of potential danger arising as a result of the appellant's negligence. She did not see or hear the accident, or its aftermath at the scene of the collision. The shock and fear (apparently well founded) that her husband might die, which caused her psychiatric illness, were caused partly by what she saw, and partly by what she was told, at the hospital on the night of the accident and on the following day. As the law relating to damages for what is somewhat crudely called "nervous shock" has limped on with cautious steps, to use the metaphor suggested by Windeyer J. in Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383 , at pp 395, 403, the old and irrational limitations on the right to recover damages for an injury of this kind have one by one been removed. Finally, in McLoughlin v. O'Brian [1983] 1 AC 410 , the House of Lords, taking one short step onward from Benson v. Lee (1972) VR 879 (and see Gannon v. Gray (1973) QdR 411) has held that a plaintiff was entitled to recover damages for nervous shock from a defendant whose negligent driving had caused a road accident in which the plaintiff's daughter was killed and her husband and other children were injured, notwithstanding that the plaintiff had been two miles from the scene of the accident when it occurred and did not hear of the accident until about two hours later, and did not see its consequences until she then went to the hospital. It was submitted on behalf of the appellant that we should not follow this decision. With all respect, however, the decision is part of the logical progression of the development of the law already evidenced in the earlier authorities and was correct in principle.

The first question for decision in cases such as McLoughlin v. O'Brian and the present is whether the plaintiff was owed a duty of care, and it was not in contest in either case that if the defendant did owe the plaintiff a duty to drive his vehicle with reasonable care he failed to fulfil that duty. The submission on behalf of the respondent in the present case was that in order to succeed she had to establish no more than that the appellant could have reasonably foreseen that his act of negligent driving might cause some sort of psychiatric illness to persons of a class of which she was one. In other words, it was submitted that foreseeability is the only test of the existence of the duty. There is high authority in support of that view. In The Wagon Mound (No. 1) [1961] A.C. 388 , at p 426, their Lordships endorsed the statement of the law made by Lord Denning in King v. Phillips [1953] 1 QB 429 , at p 441:

"there can be no doubt since Bourhill v. Young ( [1943] AC 92 ) that the test of liability for shock is foreseeability of injury by shock."

There are also some decisions of this Court in which it appears to have been suggested that foreseeability is the sole criterion of liability for negligence. In those cases, however, the question whether a duty of care existed went without saying, because the existence of a duty in cases of that kind was well established by earlier authority, and the remarks of the judges were directed only to the question whether the conduct of the defendant satisfied the requisite standard of care and not to the question whether a duty of care existed. Foreseeability is relevant to the three different questions that may arise in an action for negligence - whether there was a duty of care; if so, whether the defendant was negligent; and whether the defendant was liable for the kind of damage that resulted from the negligence - and this sometimes tends to lead to confusion.

The statement of basic principle by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 , at p 580, does not make liability for negligence depend solely on a failure to take reasonable care to avoid acts or omissions which it can reasonably be foreseen will be likely to injure someone. The duty is owed not to the world, but to one's neighbour, i.e., to "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." The principle, which is one of proximity as well as of foreseeability, was stated in the following words by Lord Wilberforce in Anns v. Merton London Borough [1978] AC 728 , at pp 751-752:

"First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prime facie duty of care arises."

However, the particular circumstances of the case may require some qualification to be placed on the principle and accordingly Lord Wilberforce stated, at p 752, a second question, namely, "whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise". This view was in substance accepted by Mason J. in Wyong Shire Council v. Shirt (1980) 146 CLR 40 , at p 44. Many examples could be given of cases in which foreseeability, although necessary to establish the existence of a duty of care, is not sufficient for that purpose. One such case is that of damages for negligent words which cause financial loss. The law, which at first did not allow recovery in such a case, now permits recovery, but by no means in every case where the loss was foreseeable; the principle, the limits of which are not yet fully defined, is complex and detailed: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465 and L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council (1981) 55 ALJR 713. Another case is that where the damage caused by some negligent physical act is solely economic. In Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" (1976) 136 CLR 529 , although the members of this Court gave different reasons why the plaintiff in that case should recover, all recognized that the fact that the loss was foreseeable was not enough to make it recoverable: see at pp.555, 573-574, 590, 604, 606. In Junior Books Ltd. v. Veitchi Ltd. [1983] 1 AC 520 , where the House of Lords dealt with the same question, all of their Lordships recognized the importance of proximity in deciding it: see at pp.533, 535, 539, 545, 551. A third example is that of the advocate who cannot be sued for negligence in the conduct of a trial, although the consequences of such negligence are readily foreseeable: see Rondel v. Worsley [1969] 1 AC 191 and Saif Ali v. Sydney Mitchell & Co. [1980] AC 198 . In all these cases policy has played a part in shaping the rule. In Dorset Yacht Co. v. Home Office [1970] AC 1004 Lord Diplock, at p 1060, gives other examples of acts or omissions which give rise to no legal liability although the loss or damage which those acts or omissions caused was readily foreseeable.

Notwithstanding the statement in The Wagon Mound (No. 1) to which I have referred, and to other expressions of a similar opinion which may be found in the authorities, I respectfully agree with the observation of Lord Wilberforce in McLoughlin v. O'Brian, at p 420, that "foreseeability does not of itself, and automatically, lead to a duty of care".

In McLoughlin v. O'Brian, although all of their Lordships agreed in the result, there was a difference of opinion as to the part played by policy in the formulation of the rule governing the recovery of damages for nervous shock. With all respect I consider that the view of Lord Wilberforce is realistic and correct. He said, at p 420, that "foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation". In forming its judgment on such a matter the court is not at large, or free to indulge its own individual notions, but must be guided by existing legal principles and by analogies that may be drawn from decided cases. On the other hand, the court is not necessarily constrained to follow earlier decisions when they appear to be out of accord with contemporary principles. For example, the decision in Chester v. Waverley Corporation (1939) 62 CLR 1 , which cannot be justified either on the ground that shock in that case was not reasonably foreseeable or on the ground that the requisite proximity was lacking, should no longer be followed.

Lord Wilberforce pointed out in McLoughlin v. O'Brian, at p 422, that in deciding on the limits that should be placed upon the extent of admissible claims for nervous shock it is necessary to consider three elements:

"the class of persons whose claims should be recognised; the proximity (in time and space) of such persons to the accident; and the means by which the shock is caused."

I would agree that these are the relevant elements, and I incline to think that the first is of the greatest importance. Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery. There are cases in which persons who do not stand in any such relationship have been held entitled to recover, including the case of rescuers (Chadwick v. British Railways Board (1967) 1 WLR 912 ) and that of fellow employees (Mount Isa Mines Ltd. v. Pusey) but they do not now fall for consideration. I would with respect reserve my opinion as to the correctness of some of Lord Wilberforce's comments on the other elements and in particular on his statements that there must be a close proximity in space as well as in time (see p 422) and that "the shock must come through sight or hearing of the event or of its immediate aftermath" (see at p 423). The law must continue to proceed in this area step by cautious step.

In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital. The fact that, in addition, she was informed by those on duty at the hospital of her husband's condition cannot in my opinion defeat her claim. She was, in my opinion, a "neighbour" of the appellant within Lord Atkin's principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed.

A final question arises. The respondent had, before her marriage, led an unhappy and deprived life and had suffered much abuse during her childhood. In consequence she had an exceptional predisposition to anxiety and depression. However the learned trial judge held that her predisposition was controlled and that she was a person of normal fortitude. It may be assumed (without deciding) that injury for nervous shock is not recoverable unless an ordinary person of normal fortitude in the position of the plaintiff would have suffered some shock. The findings of the learned trial judge make it right to infer that this has been established in the present case. In those circumstances the fact that the respondent was predisposed to shock is no answer to her claim. There is no reason why the principle of such cases as Watts v. Rake (1960) 108 CLR 158 should not apply: see also Mount Isa Mines Ltd. v. Pusey, at pp 405-406; Benson v. Lee, at p 881; and Gannon v. Gray, at p 414.

I agree that the appeal should be dismissed.